K KUNHICHEKKAN Vs. LYDIA ARUCANDEN

JUDGEMENT

(1.) The facts necessary for the disposal of this second appeal may be briefly stated. One Acha, her son Chanthan, ard her two daughters were members of a fisherman family in Malabar governed by the Marumakkattayam law. The daughters became converts to Christianity taking the names of Lydia and Salome. Chanthan died a Hindu in September 18S8. Lydia, who also died in 1888, left three children, Nathaniel and two others. Nathaniel had been born a Hindu but became a Christian along with his mother. He died in 1899 leaving the plaintiff, his widow. Salome died in 1901 leaving five children; one of whom is the 8th defendent. All her children were born after her conversion to Christianity. The suit relates to two parambas which were mortgaged by Nathaniel to the 1st defendant on kanom in 1895. The defendants Nos. 2 to 7 are persons admittedly holding under the kanom. The plaintiff instituted the suit for redemption of the kanom after obtaining Letters of Administration to the estate of her husband, Nathaniel. Her case is that the property belonged solely to her husband. Admittedly, the paramba was originally owned by Acha and on her death went to her children Chanthan, Lydia and Salome. On the 20th April 1888, Chanthan, who was then in possession of the parambas, executed a release in favour of Nathaniel--Exhibit 0. The tenants then in possession of the land surrendered it to Nathaniel in 1894, and he subsequently execuled the kanom Exhibit A, in favour of the 1st defendant. The kanomdar contended that the parambas did not belong exclusively to Nathaniel, thedemisor, that the kanom was executed in his favour by Nathaniel with the consent of Chanthan, and that subsequent to Nathaniel s death he made payments towards the annual rent to Salome s eldest son, Isaac Mackadan, that all the surviving children of both Lydia and Salome were entitled to the properly and should be made parties to the suit, and that the plaintiff herself had no right to maintain it. Isaac Mackadan was not originally made a party but was impleaded on the contention raised by the kanomdar. His pleas were similar to those raised by the kanomdar.

(2.) Issues were framed raising the question whether Salome s children including the 8fch defendant, were entitled to the property or whether the plaintiff s husband was the exclusive owner. But the Munsif disposed of the case without deciding them; he held that the kanomdar was estopped from denying the plaintiff s right to redeem as lie, with a full knowledge of all the circumstances in connection with the ownership of the property, took the kanomfrom Nathaniel to whose estate the plaintiff had taken out Letters of Administration. He, therefore, held that Salome s children including the 8tfc defendant were not necessary parties to the suit. On appeal, the Subordinate Judge agreed with the District Munsif on the question of estoppel. He also held that Chanthan was enjoying the properties as sole owner after Acha s death and the conversion to Christianity of Lydia and Salome. He confirmed the decree of the District Munsif allowing redemption.

(3.) On second appeal, it is contended that Lydia and Salome were jointly entitled to the parambas wilh Chanthan, and that their rights were inherited by their respective children; that there is no evidence that Chanthan was the sole owner daring his life-time or that Nathaniel purported to make the demise as the exclusive heir, or that the kanomdar took the katiom treating Nathaniel as the sole owner. It is further contended that Chanthan, Lydia and Salome were governed by the Marumakkattayam law; that the plaintiff, the widow of Nathaniel, had no title at all and, therefore, had no right to sue, the argument being that the Marumakkttayam law of joint holding wilh rights of survivorship continued to govern the family notwithstanding the conversion of Lydia and Salome. The respondent contends, on the other hand, that Lydia and Salome as members of a Marumakkattayam family had only a right to maintenance in the property of the family at the time of the conversion, the ownership being vested in Chanthan, the karnavan of the tarwad, and that by Exhibit C, Chanthan s exclusive ownership was transferred to Nathaniel, and the plaintiff as his heir and administratrix was, therefore, entitled to sustain the suit.